Regionalism and diffusion revisited: From final design
towards stages of decision-making
FRANCESCO DUINA AND TOBIAS LENZ*
Abstract. An emerging research program on diffusion across regional international organizations
(RIOs) proposes that decisions taken in one RIO affect decision-making in other RIOs. This work
has provided a welcome corrective to endogenously-focused accounts of RIOs. Nevertheless, by
focusing on the final design of policies and institutional arrangements, it has been conceptually
overly narrow. This has led to a truncated understanding of diffusion’s impact and to an
unjustified view of convergence as its primary outcome. Drawing on public policy and
sociological research, we offer a conceptual framework that seeks to remedy these weaknesses
by disaggregating the decision-making process on the ‘receiving’ side. We suggest that policies
and institutional arrangements in RIOs result from three decision-making stages:
problematization (identification of something as a political problem), framing (categorization of
the problem and possible solutions), and scripting (design of final solutions). Diffusion can affect
any combination of these stages. Consequently, its effects are more varied and potentially
extensive than is currently recognized, and convergence and persistent variation in scripting are
both possible outcomes. We illustrate our framework by re-evaluating research on dispute
settlement institutions in the EEC, NAFTA, and SADC. We conclude by discussing its theoretical
implications and the conditions that likely promote diffusion.
Francesco Duina is Professor and Chair of Sociology at Bates College (USA) and Honorary
Professor of Sociology at the University of British Columbia (Canada). His research focuses on
comparative regional integration. His most recent articles have appeared in New Political
Economy, Regulation & Governance, and Comparative European Politics. He is the author of The
Social Construction of Free Trade: The EU, NAFTA, and Mercosur (Princeton University Press) and
other books on the institutional underpinnings of international economic life. During 2010-2015
he sat on the editorial board of the Journal of European Public Policy.
Tobias Lenz is a Max Weber Fellow at the European University Institute. He is currently on leave
from the University of Goettingen, Germany, and the German Institute of Global and Area Studies
(GIGA), Hamburg, where he is Assistant Professor (Juniorprofessor) of Global Governance and
Comparative Regionalism. He holds a D.Phil in International Relations and an M.Phil in Politics,
both from Oxford University. His research interests include international organizations,
comparative regionalism, diffusion, EU external relations and IR theory. His current work focuses
on processes of institutional change in regional organizations and the influence of the European
Union on such processes.
Introduction
A growing literature on diffusion in political science, sociology, economics, and law
argues that rules, organizational norms, and models developed in one political setting
shape organizational decision-making in other settings. This theoretical perspective
underpins an emerging research program on diffusion across regional international
organizations (RIOs). Scholars suggest that RIOs are not atomistic entities whose
emergence and evolution can be understood in isolation from other RIOs. Instead,
1
underlying decision-making processes are interdependent because of material, social,
and cultural connections between RIOs.1 Many of these new studies have shown
convincingly that diffusion matters for understanding a wide range of empirical
phenomena in RIOs. In so doing, they provide a welcome corrective to the tendency in
the existing literature to view RIOs as driven solely by endogenous – functionalist,
intergovernmental, cultural, and other – factors.
Nevertheless, this research program has yet to realize its full potential due to a
major conceptual limitation. There is a widespread tendency to think of diffusion as
affecting only the final design of policies or institutional arrangements in RIOs. This has
resulted in a truncated understanding of the possible impact of diffusion across RIOs,
and has promoted an unjustified view of convergence, understood as a tendency
towards increasing similarity in final designs, as its primary outcome.2 This narrow
focus in much of the literature is surprising for at least two reasons. First, it is widely
recognized that organizational decision-making processes, which are conceptualized as
interdependent in RIO diffusion studies, are not singular events but tend to consist of
several phases or stages.3 Second, many studies recognize empirically that adaptation of
foreign models is a frequent outcome of diffusion; full convergence is actually rather
rare.4
In this article, we respond to Etel Solingen’s call to develop conceptual tools that
‘enable adequate discrimination among different degrees of diffusion’ by moving the
conceptual focus towards the decision-making process in the receiving organizations.
We draw on the public policy literature and organizational sociology research to identify
three conceptually distinct and sequential decision-making stages and leverage them to
understand the creation of RIO policies and institutions: problematization, that is, the
* The order of authors' names reflects alphabetical convention; both authors have contributed
equally to all work. An earlier version of this article was presented at the International Studies
Association Conference in Toronto, March 2014. We thank the participants at the meeting, as
well as Julia Gray, Joe Jupille, three anonymous reviewers and the editors for their most useful
comments. Tobias Lenz acknowledges support from the European Research Council Advanced
Grant #249543 ‘Causes and Consequences of Multilevel Governance’, and a Daimler and Benz
Foundation postdoctoral scholarship.
1 Anja Jetschke and Tobias Lenz, ‘Does Regionalism Diffuse? A New Research Agenda for the
Study of Regional Organizations’, Journal of European Public Policy, 20:4 (2013), pp. 626-37.
2 See Jens Beckert, ‘Institutional Isomorphism Revisited: Convergence and Divergence in
Institutional Change’, Sociological Theory, 28:2 (2010), pp. 150-66.
3 See, for example, James Anderson, Public Policymaking (New York: Praeger, 1975).
4 Amitav Acharya, ‘How Ideas Spread: Whose Norms Matter? Norm Localization and Institutional
Change in Asian Regionalism’, International Organization, 58:2 (2004), pp. 239-75; Robyn
Klingler-Vidra and Philip Schleifer, ‘Convergence More or Less: Why Do Practices Vary as They
Diffuse?’, International Studies Review, 16:2 (2014), pp. 264-74; Tobias Lenz, ‘EU Normative
Power and Regionalism: Ideational Diffusion and Its Limits’, Cooperation and Conflict, 48:2
(2013), pp. 211-28.
2
identification of something as a political problem; framing, or the categorization of the
problem and possible solutions; and scripting, that is, the design of final solutions. We
contend that diffusion can affect any combination of these stages. It follows that its
effects are more varied than currently acknowledged. Convergence in final design is just
one possible outcome; diffusion might also matter when we observe persistent variation
in final design.
We illustrate the usefulness of our framework in an empirical realm that has
received much recent scholarly attention: the creation of dispute settlement institutions
– that is, institutions endowed with the competence to adjudicate disputes and ensure
the enforcement of legal commitments. We turn to three RIOs: the European Economic
Community (EEC), NAFTA, and the Southern African Development Community (SADC).
Our analysis suggests that diffusion influenced the framing stage in the European Court
of Justice, and both the problematization and framing stages in NAFTA. In the case of
SADC, diffusion affected all three stages – with the EU providing the scripts for the final
stage, as already argued by Alter, Lenz and Osiemo.5 Convergence in outcome thus can
only be seen in the SADC case (with its adoption of the EU model), but this does not
mean that diffusion did not matter in the other cases. On the contrary, in those cases
diffusion affected earlier stages of decision-making and helped set the context for
persistent variation in design later on.
Our conceptual approach has three important broader theoretical implications.
First, it suggests that diffusion, beyond being a force for convergence in final designs, is
also a force for institutional or policy change more broadly. Especially if diffusion
triggers the recognition of a situation as a problem that requires political action
(problematization) and the way in which the problem is understood (framing), it
provides a strong impetus for departing from the status quo. Diffusion accounts, then,
challenge not only functional theories of institutional design and public policymaking,
but also variants of neo-institutionalist theories that predict organizational stability.
Second, our framework lends support to the view, rejected by most mainstream
diffusion theorists, that diffusion can matter even in situations in which final designs
(models) are considered for adoption but ultimately rejected. Third, our approach offers
a new way of conceptualizing the relationship between diffusion and domestic politics
in generating outcomes – two factors that are often seen as theoretical anti-theses, not
5
Karen J. Alter, ‘The Global Spread of European Style International Courts’, West European
Politics, 35:1 (2012), pp. 135-54; Karen J. Alter, The New Terrain of International Law: Courts,
Politics, Rights (Princeton: Princeton University Press, 2013); Tobias Lenz, ‘Spurred Emulation:
The EU and Regional Integration in Mercosur and SADC’, West European Politics, 35:1 (2012),
pp. 155-74; Onsando Osiemo, ‘Lost in Translation: The Role of African Regional Courts in
Regional Integration in Africa’, Legal Issues of Economic Integration, 41:1 (2014), pp. 87-122.
3
least in the prominent localization debate. By replacing a narrow focus on ultimate
outcomes with a disaggregated view of the decision-making process in the receiving
organization, we come to appreciate that diffusion and domestic politics can interact in
sequential fashion and, together, affect final outcomes in RIOs.
The article proceeds in four parts. We begin with a brief overview of existing
research on diffusion among RIOs and outline its limitations. In Part II, we propose our
conceptual framework. In Part III we illustrate it empirically through a structured
comparison of the initial creation of dispute settlement institutions of the EEC, NAFTA,
and SADC. Finally, we discuss the theoretical implications of our framework, and
propose two general conditions that seem to promote diffusion in the three stages of
decision-making.
I. Diffusion studies of regional international organizations: Research
program and limitations
Diffusion denotes the process by which ideas, policies, institutions, and organizational
activities developed in one context affect political choices in another context in the
absence of centralized coordination or coercion. From this perspective, decision-making
is interdependent, not independent, across political settings; actors factor in choices
made elsewhere as they weigh their options.6 In general, diffusion scholars take issue
with the widespread if often implicit assumption that decisions in one political setting
can be adequately understood in atomistic terms as unfolding in isolation from
developments in other settings.7
This theoretical perspective underpins an emerging research program on diffusion
among RIOs. Until recently, scholars offered accounts of RIOs that focused almost
exclusively on conditions and processes internal to the relevant region. Those accounts
are now being challenged. International political economists argue, for example, that
6
7
Zachary Elkins and Beth Simmons, ‘On Waves, Clusters, and Diffusion: A Conceptual
Framework’, Annals of the American Academy of Political and Social Science, 598 (2005), p. 35;
see also Fabrizio Gilardi, ‘Transnational Diffusion: Norms, Ideas and Policies’, in Walter
Carlsnaes, Thomas Risse, and Beth A. Simmons (eds), Handbook of International Relations
(London: Sage, 2012), pp. 453-77. There is some disagreement in the literature over whether
centralized coordination and coercion should form part of the definition of diffusion. We opt for
a narrower definition of diffusion as a decentralized process to avoid using it as catch-all
concept for almost any form of outside influence. This also allows us to disaggregate it more
easily into separate stages that can be investigated with some precision.
See Detlef Jahn, ‘Globalization as “Galton's Problem”: The Missing Link in the Analysis of
Diffusion Patterns in Welfare State Development’, International Organization, 60:2 (2006), pp.
401-31.
4
governments in one RIO craft trade agreements conditional upon the existence of
similar agreements elsewhere.8 Recent research examining the language of regional
trade agreements even shows that ‘most PTAs [preferential trade agreements] take the
overwhelming majority of their content verbatim from existing agreements.’9 There is a
rapidly growing literature on the diffusion to other regions of models inspired by the EU
for international courts, parliaments, and market integration agreements.
10
Constructivists suggest that security and democracy norms developed in Europe have
travelled to regions across the global South.11 Policy analysts furthermore show that
specific policies in some RIOs, such as those concerning the regulation of trade or labor
rights, have served as templates for the creation of policies in other RIOs.12 Overall,
these studies have accumulated wide-ranging evidence that the impact of diffusion is
Leonardo Baccini and Andreas Dür, ‘The New Regionalism and Policy Interdependence’, British
Journal of Political Science, 42:1 (2012), pp. 57-79; Joseph Jupille, Brandy Joliff, and Stefan
Wojcik, ‘Regionalism in the World Polity’, Social Science Research Network (28 March 2013),
available at: {http://ssrn.com/abstract=2242500}; Edward Mansfield and Helen Milner, Votes,
Vetoes, and the Political Economy of International Trade Agreements (Princeton: Princeton
University Press, 2012); Walter Mattli, The Logic of Regional Integration: Europe and Beyond
(Cambridge: Cambridge University Press, 1999).
9 Todd Allee and Manfred Elsig, ‘Are the Contents of International Treaties Copied-and-Pasted?
Evidence from Preferential Trade Agreements’, paper presented at the 8th Annual Conference
on the Political Economy of International Organizations, February 12-14, Berlin, Germany
(2015), p. 3, emphasis added.
10 Karen J. Alter, Laurence R. Helfer, and Osvaldo Saldías, ‘Transplanting the European Court of
Justice: The Experience of the Andean Tribunal of Justice’, American Journal of Comparative
Law, 60:3 (2012), pp. 629-64; Tanja Börzel and Thomas Risse, ‘From Europeanization to
Diffusion: Introduction’, West European Politics, 35:1 (2012), pp. 1-19; Tanja Börzel and Vera
van Hüllen (eds), Governance Transfer by Regional Organizations: Patching Together a Global
Script (Basingstoke: Palgrave Macmillan, 2015); Anja Jetschke, ‘Institutionalizing ASEAN:
Celebrating Europe through Network Governance’, Cambridge Review of International Affairs,
22:3 (2009), pp. 407-26; Clarissa F. Dri, ‘Limits of the Institutional Mimesis of the European
Union: The Case of the Mercosur Parliament’, Latin American Policy, 1:1 (2010), pp. 52-74;
Jürgen Rüland and Karsten Bechle, ‘Defending State-Centric Regionalism through Mimicry and
Localization: Regional Parliamentary Bodies in the Association of Southeast Asian Nations
(ASEAN) and Mercosur’, Journal of International Relations and Development, 17 (2014), 61-88.
11 Acharya, ‘How Ideas Spread’; Jean Grugel, ‘Democratization and Ideational Diffusion: Europe,
Mercosur and Social Citizenship’, Journal of Common Market Studies, 45:1 (2007), pp. 43-68;
Hiro Katsumata, ‘Mimetic Adoption and Norm Diffusion: “Western” Security Cooperation in
Southeast Asia?’, Review of International Studies, 37:2 (2011), pp. 557-76; Jürgen Rüland, ‘The
Limits of Democratizing Interest Representation: ASEAN’s Regional Corporatism and
Normative Challenges’, European Journal of International Relations, 20:1 (2014), pp. 237-61.
12 Leonardo Baccini, Andreas Dür, and Yoram Haftel, ‘Imitation and Innovation in International
Governance: The Diffusion of Trade Agreement Design’, in Andreas Dür and Manfred Elsig
(eds), Trade Cooperation: The Purpose, Design and Effects of Preferential Trade Agreements
(Cambridge: Cambridge University Press, 2014) pp. 167-94; Francesco Duina, ‘Frames, Scripts,
and the Making of Regional Trade Agreements’, in Rawi Abdelal, Mark Blyth, and Craig Parsons
(eds), Constructing the International Economy (Ithaca, NY: Cornell University Press, 2010), pp.
93–113; Anna van der Vleuten, Anouka van Eerdewijk, and Conny Roggeband (eds), Gender
Equality Norms in Regional Governance (London: Palgrave Macmillan, 2014). For an excellent
overview of this literature, see Thomas Risse, ‘The Diffusion of Regionalism, Regional
Institutions, and Regional Governance’, in Tanja Börzel and Thomas Risse (eds), Oxford
Handbook of Comparative Regionalism (Oxford: Oxford University Press, forthcoming).
8
5
‘certainly not spurious’,13 and they suggest, more broadly, that our understanding of
RIOs is incomplete unless we take processes of diffusion into account.
Yet this emerging research program still has to realize its full potential due to a
major conceptual weakness. It focuses almost exclusively on how final designs of
policies or institutional arrangements travel between RIOs. This has led not only to a
truncated understanding of the potential influence of diffusion, but also to an unjustified
view of convergence in final designs as the primary outcome of diffusion processes.
Many diffusion studies take the adoption of a particular institutional form, such as a
regional trade agreement or a regional parliamentary body, as their dependent
variable.14 When adoption occurs, convergence in basic institutional features is the
result. Yet even studies that move beyond a binary conceptualization of adoption display
a similar tendency. Consider the following illustration.
In a recent study, Karen Alter demonstrated that the European Court of Justice
(ECJ) has shaped the creation of dispute settlement institutions in other RIOs across the
world.15 She documents the existence of eleven ECJ copies, indicating ‘a revealed
preference to emulate the ECJ’.16 Like their European model, these courts distinguish
themselves from conventional international courts through their use of a supranational
commission that monitors state compliance, a preliminary rulings mechanism, and a
system of administrative and constitutional review that provides for private access.17
This is a striking finding given that the ECJ is ‘known for being activist and sovereignty
compromising’18 – a result that we would expect governments in most other countries
would prefer to avoid. It is also theoretically important because it challenges established
functional theories of delegation to international dispute settlement institutions that
depict them solely as rational responses to structural conditions internal to the
respective organizations.19
While Alter convincingly shows that diffusion matters for understanding the final
design of dispute settlement institutions in many RIOs, two crucial questions about
diffusion’s precise theoretical significance are difficult to answer on the basis of her
analysis. First, does her account suggest that, in RIOs without a court modeled on the
Tanja Börzel and Thomas Risse, ‘When Europeanisation Meets Diffusion: Exploring New
Territory’, West European Politics, 35:1 (2012), p. 194.
14 Baccini and Dür, ‘New Regionalism and Policy Interdependence’; Mattli, ‘Logic of Regional
Integration’; Jetschke, Anja and Murray, Philomena, ‘Diffusing Regional Integration: The EU and
Southeast Asia’, West European Politics, 35:1 (2012), pp. 174-91.
15 Alter, ‘The Global Spread of European Style International Courts’.
16 Alter, ‘The Global Spread of European Style International Courts’, p. 145.
17 See Alter, The New Terrain of International Law.
18 Alter, The New Terrain of International Law, p. 90.
19 For example, James McCall Smith, ‘The Politics of Dispute Settlement Design: Legalism in
Regional Trade Pacts’, International Organization, 54:1 (2000): 137-80.
13
6
ECJ, diffusion from Europe did not matter at all? By focusing strictly on final design,
Alter may have missed other types of diffusion effects. Second, is it justified to assume
that convergence can be the only result of – and evidence for – diffusion? Should we not
look for diffusion even when we observe continued variation in final designs? Put
differently, did Alter miss other potentially relevant cases? Taken together, these
questions suggest that the existing scholarship on RIOs at once may be underestimating
the role of diffusion (to the extent that it operates at stages other than final design) and,
when evidence in its favor is found when it comes to final designs, may be attributing to
it too much importance (given that it is then generally seen as one, if not the major,
explanatory variable) – as, indeed, a number of scholars have started to suspect.20
An important next step, then, is to expand the research focus so as to include but go
beyond final design. This requires, we believe, a more nuanced view of the decision-
making process underlying the adoption of final designs. Below, we turn to the literature
on public policy and organizational sociology to elaborate a coherent conceptual
framework around this idea.
II. Diffusion and stages of decision-making: A conceptual framework
Our framework starts from a conceptualization of diffusion that has become widely
accepted in contemporary research: it is best seen as a process, not an outcome,
characterized by interdependent and decentralized decision-making across units of
analysis, be they states or international organizations.21 Whereas recent work on
diffusion has focused on dissecting the transfer process from one political setting to
another with a focus on final designs,22 we propose to disaggregate the decision-making
process in the receiving organization. We thus view the potential impact of diffusion as
more extensive than is depicted in current research. Our specific focus is on diffusion
across legally distinct RIOs, be they in different geographical areas or overlapping ones,
and in place at the same point or different points in time.
We propose that organizational decision-making encompasses three analytically
distinct and sequential stages. First, actors identify a problem as requiring political
20Acharya,
‘How Ideas Spread’, p. 241; Klingler-Vidra and Schleifer, ‘Convergence More or Less’,
p. 264.
21 Elkins and Simmons , ‘On Waves, Clusters and Diffusion’, pp. 35-36; Gilardi, ‘Transnational
Diffusion’.
22 Solingen, ‘Of Dominoes and Firewalls’; Etel Solingen and Tanja Börzel, ‘Introduction to
Presidential Issue: The Politics of International Diffusion – A Symposium’, International Studies
Review, 16:2 (2014), pp. 173-87.
7
action – what we term problematization. Second, actors categorize this problem and the
types of possible solutions – what we call framing. Third, actors generate specific policy
and institutional solutions within the articulated frame – we refer to this as scripting
(this is the step of typical interest in the existing scholarship with its focus on final
design).23 Each of these stages follows distinct dynamics and is potentially influenced by
different causal factors, providing the rationale for treating them as conceptually
distinct.24 To be sure, as the case studies below also indicate, the boundaries between
these stages are not always easy to draw in empirical analysis. Problematization and
framing or framing and scripting sometimes go hand in hand, indicating that choices
across the three stages may feed into one another. Problematizing an issue in a certain
way tends to open up a certain universe of frames. Similarly, selecting certain frames
over others renders the choice for certain scripts more likely. In short, decisions at an
earlier stage may affect decisions at later ones – in line with the expectations of path
dependence theorists.25 Our point, however, is precisely to propose, and then show
empirically, that actors can in fact make de novo choices across these stages – and that
diffusion can be a powerful force at each of them. Thus, whereas one model might serve
as the basis for framing a decision, a different model might inspire scripting. Decisions at
one stage do not fully determine decisions at later ones. At each stage, actors have
considerable freedom over how, exactly, they respond to decisions taken at earlier
stages.
Diffusion across RIOs, then, can affect any one of these decision-making stages
independently and in any combination, including the possibility that it does not affect
any of them at all (for example when policymakers in one RIO are unaware of, or simply
ignore or reject, the problems, frames, and scripts adopted in other RIOs). Diffusion can
thus not only affect scripting, as much recent diffusion research suggests, but also
problematization and framing.
We depict our conceptual framework in Figure 1.
This three-fold division is akin to the distinction between institutional change, institutional
choice, and institutional design in recent works on institutions that use rational choice theory.
See Joseph Jupille, Walter Mattli, and Duncan Snidal (eds), Instititional Choice and Global
Commerce (Cambridge: Cambridge University Press, 2013); Barbara Koremenos, Charles
Lipson, and Duncan Snidal, ‘The Rational Design of International Institutions’, International
Organization, 54:4 (2001), pp. 761-99.
24 John Kingdon, Agendas, Alternatives and Public Policy (Boston: Little, Brown and Co, 1984), p. 3;
See also Herbert Simon, ‘Political Research: The Decision-Making Framework’, in David Easton
(ed.), Varieties of Political Theory (Englewood Cliff: Prentice-Hall, 1966), pp. 15-24.
25 See, for instance, Paul Pierson, Politics in Time: History, Institutions, and Social Analysis
(Princeton: Princeton University Press, 2004), chapter 1.
23
8
Policies and Institutional Arrangements
Decision-making
Stage 1
Problematization
Diffusion
Yes
No
Stage 2
Framing
Yes
Stage 3
Scripting
No
Yes
No
Figure 1. Diffusion and stages of decision-making.
Below, we explicate each of the three decision-making stages and how diffusion can
operate in each. Empirical illustrations are drawn from work on RIOs and dispute
settlement.
Problematization
Sociologists and other scholars of organizations have recognized for some time that
‘problems’ do not simply exist in the world but are in fact crafted through cognitive and
societal processes.26 Departing from functionalist understandings of organizational
structures and practices as reflecting ‘objective’ problems, they suggest that actors in
organizations construct problems. As Kingdon notes, problems are ‘not entirely self-
evident. How people define something as a problem is worth some consideration.’27
Many ‘objective’ problems do not trigger political action because they are not perceived
as problems, or because no solution is readily available. Indeed, the poor functioning of
many regional economic organizations is a ‘real’ problem with surprisingly little
political consequence.28 Many of these organizations persist as ill-functioning for years
Michael D. Cohen, James G. March, and Johan P. Olsen, ‘A Garbage Can Model of Organizational
Choice’, Administrative Science Quarterly, 17:1 (1972), pp. 1-25; Walter Powell and Paul
DiMaggio (eds), The New Institutionalism in Organizational Analysis (Chicago: University of
Chicago Press, 1991); Malcolm Spector and John I. Kitsuse, Constructing Social Problems (New
Brunswick, NJ: Transaction Publishers, 2001).
27 Kingdon, Agendas, Alternatives and Public Policy, p. 95.
28 See Julia Gray and Jonathan Slapin, ‘How Effective Are Preferential Trade Agreements? Ask the
Experts’, Review of International Organizations, 7:3 (2012), pp. 309-33.
26
9
and even decades without attempts to change the situation. From this perspective,
problematization is the ‘process by which given social conditions or arrangements come
to be recognized as social problems’29, that is, problems that require political action. It is
the first step toward the creation of new policies and institutional arrangements.
How does something become a problem? Scholars of organizations at times point to
causal variables that are internal to an organization. Social constructivists posit that
actors subscribe to particular normative viewpoints about the world that they use to
problematize challenges, dysfunctions, strains, or sub-optimal outcomes that may
emerge from within the organization. 30 Moreover, the resources, expertise, and
‘institutional logics’ an organization is endowed with bias what types of occurrences are
characterized as problems.31 Regarding dispute settlement, problematization might
result from an endogenous learning process whereby actors become dissatisfied with
current arrangements. For example, in Mercosur the ‘reform of the DSS [dispute
settlement system] was placed on the agenda as a result of perceived problems with the
institutional status quo’ due to defeats of the two larger member states Argentina and
Brazil in dispute settlement.32
The sources of problematization, however, can also be external to the organization.
A crisis in a specific cultural and social context might spark problematization and thus
organizational change. Policy-makers in Europe, for instance, ‘viewed Hitler’s
extermination policy as exposing a limitation of international law’ that required
determined political action in a context in which a ‘strong[…] norm supporting
international and global judicial bodies’ already existed.33 The absence of a robust
European human rights system thus became problematized, and ultimately led to the
creation of the European Court of Human Rights in 1953. But, more pertinently for our
purposes, scholars of policy learning and policy transfer have long recognized that
Herbert Blumer, ‘Social Problems as Collective Behavior’, Social Problems, 18:3 (1971), p. 302,
emphasis added.
30 Darin Weinberg, ‘On the Social Construction of Social Problems and Social Problems Theory: A
Contribution to the Legacy of John Kitsuse’, American Sociologist, 40:1/2 (2009), pp. 61-78;
Michael Barnett and Martha Finnemore, Rules for the World: International Organizations in
Global Politics (Ithaca: Cornell University Press, 2004).
31 William Ocasio, ‘The Enactment of Economic Adversity: A Reconciliation of Theories of
Failure-Induced Change and Threat-Rigidity’, Research in Organizational Behavior, 17 (1995),
pp. 287-331; William Ocasio, ‘Toward an Attention-Based View of the Firm’, Strategic
Management Journal, 18:S1 (1997), pp. 187-206.
32 Christian Arnold and Berthold Rittberger, 'The Legalization of Dispute Resolution in
Mercosur', Journal of Politics in Latin America, 5:3 (2013), p. 115.
33 Suzanne Katzenstein, ‘In the Shadow of Crisis: The Creation of International Courts in the
Twentieth Century’, Harvard Journal of International Law, 55:1 (2014), pp. 188, 165.
29
10
‘problems’ can travel between organizations.34 Similarly, students of organizations
contend that organizations are embedded in organizational fields, and that interaction
density, structure, and degree of consolidation generate pressures for institutional
isomorphism.35
In this vein, we suggest that the recognition in one RIO of a problem as politically
relevant can be the result of its construction in another RIO. Regional dispute settlement
serves in this regard as a very pertinent example. During the 1960s and 1970s few
regional integration projects entailed strong dispute settlement mechanisms because no
link had been established between dispute settlement and the success of regional
integration. As this changed due to the EU experience in the 1970s, the absence of
supranational dispute settlement systems in other RIOs began to be seen as a problem.36
When policy-makers in the Association of Southeast Asian Nations, for example, started
discussion on the removal of tariff and non-tariff barriers to trade in the early 1990s,
experts quickly pointed to the EU and other RIO’s experience in arguing that this
undertaking is likely to fail in the absence of more solid institutions to ensure
implementation37 – an argument that eventually convinced policy-makers. The problem
of dispute settlement had diffused to ASEAN from the outside.
Framing
Once actors come to agree that a problem requires political action, they start thinking
about ways of tackling it. As they do, they operate with certain ‘frames’ in mind.38
According to research on organizational action, social movements, and policy learning39,
William E. Paterson and James Sloan, ‘Learning from the West: Policy Transfer and Political
Parties’, Journal of Communist Studies & Transition Politics, 21:1 (2005), pp. 33–47; Peter A.
Hall, ‘Policy Paradigms, Social Learning, and the State: The Case of Economic Policymaking in
Britain’, Comparative Politics, 25:3 (1993), pp. 275–96.
35 Paul DiMaggio and Walter Powell, ‘The Iron Cage Revisited: Institutional Isomorphism and
Collective Rationality in Organizational Fields’, American Sociological Review, 48:2 (1983), p.
148; John Meyer and Brian Rowan, ‘Institutionalized Organizations: Formal Structure as Myth
and Ceremony’, American Journal of Sociology, 83:2 (1977), pp. 340-63.
36 Alter, Helfer and Saldías, 'Transplanting the European Court of Justice', pp. 629-32.
37 Jacques Pelkmans, 'Asean's Institutional Requirements with Special Reference to Afta',in Pearl
Imada and Seiji Naya (eds), Afta: The Way Ahead (Singepore: Institute for Southeast Asian
Studies, 1992), pp. 126-29; Rolf Langhammer, 'What Can Asean Learn from the Experience of
European Integration? An EU Perspective', in Siow Yue Chia and Joseph Tan (eds), Asean & EU:
Forging New Linkages and Strategic Alliances (Singapore: Institute of Southeast Asian Studies,
1997), pp. 234-56.
38 Robert D. Benford and David A. Snow, ‘Framing Processes and Social Movements: An Overview
and Assessment’, Annual Review of Sociology, 26 (2000), pp. 611-39.
39 Ellen Reese and Garnett Newcombe, ‘Income Rights, Mothers’ Rights, or Workers’ Rights?
Collective Action Frames, Organizational Ideologies, and the American Welfare Rights
Movement’, Social Problems, 50:2 (2003), pp. 294-318; David Snow and Robert Benford,
‘Master Frames and Cycles of Protest’, in Aldon D. Morris and Carol McClurg Mueller (eds),
Frontiers in Social Movement Theory (New Haven: Yale University Press, 1992), pp. 133-55.
34
11
frames can be defined as ‘collectively shared and accepted ways of interpreting
situations and problems’.40 Frames include basic schemas, categories, causal pathways,
and other cognitive tools. As such, frames are not the answers to the problem but,
rather, the basic cognitive tools with which actors first categorize problems and then
consider certain tools to solve them – what Barnett and Finnemore term ‘classification.’41
By allowing actors to understand problems and to conceive of certain solutions, frames
logically exclude alternative interpretations and solutions. We may say that they
channel actors’ cognitive abilities and efforts.
Categorization involves the assignment of labels to a perceived problem. A perceived
violation of a supranational legal commitment, for instance, may be described as a
‘failure of implementation’ that has the potential to seriously undermine the credibility
of regional integration more broadly. Such categorization allows actors to make sense of
a problem – to give it essential traits and characteristics – and thus to render it
amenable to certain kinds of solutions and not others. The identification of possible
types of interventions therefore follows categorization. Certain problems, in other
words, call for certain kinds of solutions and not others.42 To return to our example, by
classifying a legal violation as an instance of implementation failure, policy-makers
interpret it as part of a general and therefore potentially much larger problem that
requires a solution appropriate to the problem at hand: an ad hoc remedial measure
might not suffice, a systematic institutional solution is called for.
Where do frames come from? Social movement scholars note that frames are often
available in society, as part of the proximate cultural environment in which actors
operate.43 Actors appropriate frames from their environment and use them to look at
the problem at hand. The proposed solutions resonate with those actors and those
around them. It would make little sense if matters were otherwise: frames that do not fit
a particular cultural context have little chance of guiding actors towards solutions that
will be appreciated and understood because they contain ‘cultural repertoires’ that
make action intelligible. 44 These insights are relevant for RIOs. Actors in those
Duina, ‘Frames, Scripts, and the Making of Regional Trade Agreements’, p. 100.
Barnett and Finnemore, Rules for the World, pp. 31-32.
42 Jackie Smith, ‘Bridging Global Divides?’, International Sociology, 17:4 (2002), pp. 505-28.
43 John Boli and George M. Thomas, ‘Introduction’, in John Boli and George M. Thomas (eds),
Constructing World Culture: International Nongovernmental Organizations since 1875 (Stanford:
Stanford University Press, 1999), p. 4; Sidney Tarrow, ‘Mentalities, Political Cultures, and
Collective Action Frames: Constructing Meanings through Action’, in Aldon D. Morris and Carol
McClurg Mueller (eds), Frontiers in Social Movement Theory (New Haven: Yale University Press,
1992), pp. 174-202.
44 Mayer Zald, ‘Culture, Ideology, and Strategic Framing’, in Dough McAdam, John MacCarthy and
Mayer Zald (eds.), Comparative Perspectives on Social Movements (Cambridge: Cambridge
University Press, 1996), pp. 261-74.
40
41
12
organizations operate in national or international cultural contexts rich with frames. For
example, domestic legal systems contain manifold taken-for-granted assumptions about
the nature of legal problems and adequate solutions that are likely to shape
international negotiators’ preferences. In this vein, Duina demonstrates a striking
correspondence between the legal traditions of member states – common law vs. civil
law – and the nature of dispute settlement mechanisms in regional trade agreements.45
However, we propose that frames can also come from other RIOs; frames diffuse
between organizations. This can happen in multiple ways. For one, actors in one setting
are inevitably bound to search for proven and appropriate frames by looking at what
other RIOs are doing. They actively consult and examine those organizations. A second
way is through more passive exposure: some frame used by one or more RIO may have
acquired broad recognition already. A third path of diffusion is the active promotion
(through training programs, published materials, conferences, etc.) on the part of one
RIO of its frames for adoption by others. Such promotion can be further supported by
backing from external actors such as politicians and experts in epistemic communities.
It follows that the RIO that serves as the ‘provider’ of frames need not have been
involved in problematization; the two decision-making stages can be treated as
independent. For instance, internal dynamics or exogenous crises may be responsible
for problematization; once in place, the problem requires attention and organizational
actors may then start looking beyond their confines for inspiration or, in a more passive
fashion, may have already internalized dominant frames in their organizational fields.
According to Alter et al., the idea of separate decision-making stages captures the
process of the creation of the Andean Tribunal of Justice. Problematization had internal
roots, with the practice of enacting secondary legislation by presidential decree without
parliamentary approval leading policy-makers to view the Andean legal system as
requiring political reform. Yet, framing was significantly affected by diffusion. Once
policy-makers began to search for potential solutions, the problem was framed in terms
of a lack of a supranational judicial review mechanism that could ‘[provide] a designated
judicial body for challenging Andean law’, a categorization that, in turn, inadvertently
led policy-makers to view the ‘the necessity to create a court’ for the region.46 This
frame had diffused from Europe to legal experts in the region via socialization and
emulation processes. While the ‘question of what type of court [to establish] remained
Francesco Duina, ‘Making Sense of the Legal and Judicial Architectures of Regional Trade
Agreements Worldwide’, Regulation and Governance, doi: 10.1111/rego.12081.
46 Alter, Helfer and Saldias, 'Transplanting the European Court of Justice', p. 643.
45
13
open’47, i.e. scripting had yet to be decided, the specific framing of the problem as
requiring further supranational legal integration excluded alternative interpretations
and other potential solutions, such as changing domestic constitutional provisions or
involving national parliaments in the adoption of Andean secondary legislation.
Scripting
Once actors have categorized the problem and thereby pre-figured potential solutions,
they set out to devise new policies and institutional arrangements. This final stage
requires detailing the specific features that create an institution or policy. For example,
how should a dispute settlement institution be composed? What specific competences
should it have? And should its decisions be binding on member states? Following the
terminology of world polity theory, we refer to this stage as the production of scripts, or
scripting.48 RIO actors utilize scripts, or existing models, as building blocks for the final
design of a new policy or institution. Sometimes, single scripts serve as ready-made
templates for the design of policies and institutions; at other times, policies and
institutions are patched together from different scripts.49 For example, the Mercosur
dispute settlement mechanism combines elements from the World Trade Organization
as well as from the European Court of Justice.50 And as we elaborate further below, even
when specific templates are adopted, they are usually adapted to local conditions. As
already noted, this is the stage of the decision making process upon which scholars of
diffusion across RIOs have thus far focused almost exclusively.
The key question for us concerns the origins of those scripts. How do RIO actors
produce them? Research suggests that RIO actors refer to the broader environment for
inspiration.
National
governments,
with
their
legal
systems
and
extensive
administrative structures, are significant producers and depositories of scripts on a
large variety of topics.51 These are accessible and, depending on the issues on hand, RIO
policymakers certainly consult them for insights. Much of the same can be said of the
policy platforms on national political parties. Some domestic pressure groups make it
their mission to provide ready-made policies for international organizations to adopt.
They promote their work by publishing them on their websites or other media venues.
Ibid., p. 643.
Duina, ‘Frames, Scripts, and the Making of Regional Trade Agreements’, p. 100.
49 Börzel and van Hüllen (eds), Governance Transfer by Regional Organizations.
50 Lenz, ‘Spurred Emulation’, p. 168; Arnold and Rittberger, 'The Legalization of Dispute
Resolution in Mercosur', p. 122.
51 David John Frank, Ann Hironaka, and Evan Schofer, ‘The Nation-State and the Natural
Environment over the Twentieth Century’, American Sociological Review, 65:1 (2000), pp. 96116.
47
48
14
As we demonstrate in the European case below, many of the design features of the
European Court of Justice had their origin in German and Italian models.
At the same time, according to sociologists, international organizations themselves
are also very important sources of scripts.52 These include transnational corporations,
international
industry-oriented
bodies
(such
as
the
International
Standards
Organization, International Accounting Standards Committee, and World Health
Organization), international development-oriented organizations (the OECD or World
Bank, for example), and international lobbying and interest groups.53 The scripts
originating from one international organization are easily accessible by actors in other
international organizations. In many cases, they are actively promoted to those actors.54
Consider, as an example, the IMF’s recommended minimum deposit rules for personal
accounts with international banks.
Along with existing scholarship on final design in RIOs, we posit that RIOs are
important sources of scripts. Scripts diffuse, in other words, across legally distinct RIOs.
The mechanisms of diffusion are once again varied. Officials in one RIO can turn to
another RIO for inspiration. They may as well come under pressure (internally and
externally) to adopt scripts that have proven successful in another RIO. The originating
RIO may, for instance, offer financial compensation for adoption, or require it as a
condition for something else to happen (a trade agreement between the two blocs, for
instance). Powerful groups (consumer organizations, special interest associations, etc.)
may also pressure officials in one RIO to follow the examples set by an official in another
RIO. Expediency may of course also play a role: ready-made solutions are attractive in
their own right. Karen Alter, in the piece discussed above, demonstrates that the
European Court of Justice script has been widely adopted, sometimes with
modifications, across RIOs in the global South.
Importantly, we should note that such diffusion of scripts can happen independently
from that of frames or problems. As with frames, scripts may or may not come from the
same sources that provided the problematization of something. They may also not come
from the source of the relevant frames being utilized. Indeed, because they are rather
concrete and explicitly articulated, scripts can be easily ‘found’ anywhere in world
society and borrowed, irrespective of the prior work that has been done on a problem.
Thus it is important to keep in mind that RIOs are only one of the many types of sources
Boli and Thomas, ‘Introduction’, pp. 1-10.
Francesco Duina and Peter Nedergaard, ‘Learning in International Governmental
Organizations: The Case of Social Protection’, Global Social Policy, 10:2 (2010), pp. 193-217.
54 Martha Finnemore, ‘International Organizations as Teachers of Norms: The United Nations
Educational, Scientific, and Cultural Organization and Science Policy’, International
Organization, 47:4 (1993), pp. 565-97.
52
53
15
for scripts. The World Trade Organization and its predecessor, the General Agreement
on Tariffs and Trade, have for instance served as influential sources of scripts for
dispute settlement design in RIOs.
Diffusion and Persistent Variation
As already noted, much of the existing literature shares an implicit understanding of
diffusion as the transfer of models across RIOs, even if they are synthesized in creative
ways. As a result, scholarship to date has inextricably linked diffusion with convergence,
or even homogenization, understood as a tendency of ‘receiving’ RIOs to become more
similar to, or even alike, ‘sending’ RIOs in final designs.55 Yet, if diffusion affects only
problematization and/or framing while innovation occurs in scripting, scriptural
convergence does not take place; sending and receiving RIOs continue to display
variation in this respect. Given the existing literature’s focus on final designs, we refer to
convergence only if diffusion affects the scripting stage, whereas we speak of persistent
variation between sending and receiving RIO when diffusion effects are confined to
problematization and/or framing. Our main argument is, therefore, that diffusion may
be happening even when we observe persistent variation. As mentioned before, while
scholars do recognize this empirically, we provide a coherent framework to ground
these observations conceptually. We now have a more nuanced conceptual perspective
on how diffusion can operate across RIOs, which allows us to improve upon the
tendency to equate diffusion with convergence in final designs.
III. Illustrations: Dispute settlement institutions in RIOs
In this section, we illustrate our conceptual framework with a structured comparison of
the creation of regional dispute settlement institutions in three RIOs: the EEC, NAFTA,
and SADC. Based on existing secondary literature and our own research, we re-examine
the decision-making episodes that led to the initial creation of such a body in the
respective organizations with a view to discerning the role of diffusion at each stage.56
This is not to deny that some scholars, especially those interested in localization processes,
tend to frame their inquiries into diffusion in terms of translation and adaptation rather than
convergence. This rhetorical move notwithstanding, these scholars are hard-pressed to deny
that if diffusion takes place, even when transferred models are extensively adjusted to fit local
conditions, this increases similarity between the respective units in final designs when
compared to the status quo antes, and therefore can be labeled a form of convergence.
56 Some of these bodies changed subsequently. SADC, for example, later created a second dispute
settlement mechanism in the context of the SADC Trade Protocol, and it disbanded the SADC
55
16
We are interested in diffusion between RIOs, understood as transfers between distinct
legal entities established by formal contracts between neighbouring countries.
We selected these case studies for several reasons. First, we wanted to illustrate the
two central conceptual points in our argument: diffusion can generate a variety of
effects along the decision-making process, operating not only at the final design
(scripting) but also at the problematization and framing stages; and diffusion might play
a role in decision-making even if convergence in final designs is not the outcome, which
means that persistent variation is another potential outcome of diffusion processes. The
three RIOs offer compelling evidence on these points. Second, the three case studies
reflect distinct periods in the evolution of the international judiciary – the EEC in the
post-World War Two era, NAFTA during the transition period at the end of the Cold
War, and SADC in the post-Cold War era. This highlights the broad applicability of our
framework.
Third, two of our case studies (the EEC and NAFTA) illustrate especially well how
persistent variation can result even in circumstances where there would be strong
reasons to expect diffusion in all three stages. As we shall see, there was within each
region (Western Europe and North American) a preexisting – though legally distinct –
RIO which could have served as a convenient basis for the design of dispute resolution
mechanisms. As path dependence and simple logic would lead us to expect, there
certainly was some diffusion from those earlier RIOs – a high degree of co-membership,
in our view, is certainly a condition conducive to diffusion, an issue we will come back to
in the conclusion. But the fact that diffusion did not happen in all stages, and variation in
final designs occurred in these two RIOs, is remarkable and instructive.
Our focus is on RIO-to-RIO diffusion. This means we do not examine in detail other
sources of diffusion such as global organizations as well as potential second- or third-
order diffusion effects that are ‘the product of sedimentation of prior and historically
more remote diffusion.’57 We of course acknowledge those sources as important. The
fact that dispute settlement mechanisms have become very common in international
organizations58 has certainly influenced policymakers in many RIOs. We recognize this
but then aim to trace, to the best possible extent, diffusion across RIOs.
Tribunal in 2012 following a controversial ruling against the Zimbabwian government. For an
extended discussion of the latter, see Karen Alter, James Thuo Gathii, and Laurence Helfer,
‘Backlash Against International Courts in West, East and South Africa: Causes and
Consequences’, iCourts Working Paper Series, No. 21 (2015).
57 Solingen, ‘Of Dominoes and Firewalls’, p. 633.
58 Barbara Koremenos and Timm Betz, ‘The Design of Dispute Settlement Procedures in
International Agreements’, in Jeffrey A. Dunnoff and Mark A. Pollack (eds), International Law
17
Our findings, in brief, are these. In all three instances diffusion mattered. Yet, it did
so very differently in each case. Existing research argues that the scripts that define
SADC’s dispute settlement institutions came from the EU.59 We concur with this view:
the permanent and centralized dispute adjudication of the EU indeed found its way into
SADC. Scholars have instead considered NAFTA (with its non-permanent and
decentralized mechanism) and the EU itself as innovators: they built new mechanisms.
As such, scholars have shown little interest in diffusion as a possible causal factor. In
fact, we suggest that diffusion influenced the framing of potential solutions in the case of
the European Court of Justice, and that it affected both the problematization and framing
of dispute settlement in NAFTA. Indeed, in both cases, the ‘originating’ RIOs were in
those two very regions respectively – but have been overlooked because of the
assumption that lack of convergence means lack of diffusion. When it comes to SADC,
moreover, diffusion certainly influenced scripts but also the steps of problematization
and framing – something that has until now been overlooked. We summarize our
discussion in Table 1.
Institutional
arrangement
Influence of RIO
diffusion on:
Problematization
Framing
Scripts
Institutional design
outcome
EU
European Court of
Justice (1958):
permanent,
centralized dispute
adjudication
NAFTA
Dispute settlement
mechanism for
investments
(1994): nonpermanent,
decentralized
dispute
adjudication
SADC
SADC Tribunal
(2000): permanent
centralized dispute
adjudication
No
Yes
No
Persistent variation
Yes
Yes
No
Persistent variation
Yes
Yes
Yes
Convergence
Table 1: Diffusion and decision-making stages in three RIOs
Thus, diffusion mattered in all three cases, even when final institutional design varied.
Importantly, diffusion was partial precisely in the two case studies – EEC and NAFTA –
and International Relations: Synthesizing Insights from Interdisciplinary Scholarship (Cambridge
University Press, 2013).
59 Alter, ‘The Global Spread of European Style International Courts’; Alter, The New Terrain of
International Law; Tobias Lenz, ‘Spurred Emulation’; Osiemo, ‘Lost in Translation’.
18
where we would have expected it to be wholesale (since these two RIOs were created in
areas where earlier, though legally distinct, RIOs were in place).
European Economic Community
The EEC, and later the European Union, is typically considered the source of diffusion
for other RIOs and rarely the receiver. This is especially so in the case of its European
Court of Justice, which was created in 1958 with the two Treaties of Rome – the EEC and
the European Atomic Energy Community. Without question, the European Court of
Justice has influenced the creation of courts in numerous RIOs. What is often not
considered, however, is whether other RIO courts have shaped the European Court of
Justice itself. A close examination of the historical record shows that diffusion happened
at one juncture in particular: framing. The source was an RIO in Europe itself: the
European Coal and Steel Community and its Court of Justice (the ECSC-CJ). Indeed, the
ECSC-CJ, and not the European Court of Justice, should be considered perhaps the first
and most original of the modern RIO courts.
A few clarifications about the ECSC-CJ are in order. It was not part of the original
plans for the Treaty of Paris of 1951 which established the European Coal and Steel
Community.60 It emerged as a possibility after the member states became concerned
with questions of legal remedies and of the balancing the powers of the supranational
European Coal and Steel Community High Authority with the interests of national
governments. A committee of jurists was given the mandate to make proposals. France
opposed any permanent court, but the Benelux countries and Germany favored it –
albeit for different reasons.61 Once the decision was made to have a court, intense
negotiations ensued. The evidence points to inspiration coming from ‘traditionalcontinental European types of administrative courts,’62 and, in particular, France’s
Conseil d’Etat, though its design ultimately ‘defied easy categorisation’.63 The ESCS-CJ
was accordingly designed without other RIO courts in mind, though it belonged to a
post-War period during which new transnational courts of justices were being created
(for instance, the Nuremberg Court and the European Court of Human Rights).
These developments influenced the European Court of Justice. In the early 1950s,
the six European Coal and Steel Community members began contemplating integration
Hjalte Rasmussen, On Law and Policy in the European Court of Justice: A Comparative Study in
the European Court of Justice (Dordecht: Martinus Nijhoff Publishers, 1986), p. 207.
61 Anne Boerger-De Smet, ‘Negotiating the Foundations of European Law, 1950–57:
The Legal History of the Treaties of Paris and Rome’, Contemporary European History, 21:3
(2012), pp. 342-43.
62 Rasmussen, On Law and Policy in the European Court of Justice, p. 208.
63 Boerger-De Smet, ‘Negotiating the Foundations of European Law’, p. 346.
60
19
efforts for their national economies and the production of atomic energy. While
negotiating the treaties for the EEC and the European Atomic Energy Community (two
new and legally distinct RIOs), ‘it was by no means clear how the institutional structure
of the two communities would look and whether it would include a Court’.64 Indeed,
uncertainties about the need for a court featured in parallel discussions by federalists,
such as the European Movement led by Paul Henri Spaak and other Europeans exploring
a variety of futures for a united Europe (including a European Political Community,
which could have had a need for a court).65
A new problem thus presented itself: did the process of adding two new RIOs in
Europe necessitate the creation of new and shared supranational institutions? A
fundamental disagreement was at the root of the question. In a sort of turnaround from
its position during the European Coal and Steel Community creation, the French
delegation to the Venice negotiations in May of 1956 made it clear it ‘could not support a
connection between the ECSC court and the two projected Communities’.66 France was
opposed to a strong supranational judiciary capable of acting independently of national
interests. But the other member states thought that the creation of the European
Economic Community and the European Atomic Energy Community called for an
integrated legal system (inclusive of the European Coal and Steel Community) and
shared institutions, including a court. The challenge of building three parallel RIOs thus
served as grounds for the problematization of the need for a possible court. In the
language of this article, the first step of the process was therefore an internal matter: it
had to do with the institutional logic of creating three RIOs.
There followed considerable debate over how best to proceed. Negotiators began
categorizing the problem they faced and identifying a set of possible solutions – they
began framing the issues on hand. The available evidence suggests that at this moment
the ECSC-CJ became an important reference point (much as it had in the earlier
discussions surrounding the European Political Community).67 Officials from all the
member states but France reasoned that the EEC by virtue of its extensive legal
framework would inevitably face a judicial problem similar to the one experienced by
the European Coal and Steel Community, and that accordingly an independent
permanent court analogous in general terms to the ECSC-CJ would be the appropriate
Hjalte Rasmussen, ‘The Origins of a Legal Revolution: The Early History of the European Court
of Justice’, Journal of European Integration History, 14:2 (2008), p. 86.
65 Ibid, p. 80.
66 Ibid.
67 Ibid.
64
20
type of solution68. Equally important, given that the European Coal and Steel Community
would constitute one of the three RIOs in question, the judicial question would also
involve the ECSC and, for the sake of institutional unity and coherence, should be dealt
with by a single judicial body. The problem was therefore deemed to be judicial in
nature, and the solution would also be the same. Thus, a network of pro-European
jurists, including ESCS-ECJ General Advocate Maurice Lagrange, argued that ‘[ESCS-]ECJ
jurisprudence laid the foundations for a genuinely European legal order on which a
future Federal Court could base itself’69. But the French government (along with some
prominent politicians from other countries, such as the German Ministry of Economics)
disagreed, and proposed that the solution be more ‘technical’ in nature: a Court of
Arbitrage made up of a secretariat and ad hoc technical experts could suffice, given that
only a few disputes would arise.70 The ECSC-CJ, for the French, was not an appropriate
reference. The lack of consensus around solutions meant that the court was eventually
removed from the agenda in late 1956, only to reappear at later rounds in the
negotiations.71
After securing important economic concessions, the French relented and the idea of
a permanent court of justice was accepted.72 The time had thus come to define its design
– the script phase began. Here, if the ECSC-CJ was inspirational in the framing phase, it
played a significantly lesser role in this third step. Now officials had to deal with three
RIOs and the objectives and aspirations in question had considerably expanded.73 A
more powerful court, effectively dealing with constitutional tasks – i.e., with the ability
‘to invalidate statutes and other acts of public authority found to be in conflict with a
constitution’74 – was envisioned, and officials had to reach for new ideas and tools. As a
group, key historical accounts, such as Boerger-De Smet’s,75 depict the jurists charged
with defining the court as operating with considerable freedom and independence and
turned, at least for some inspiration, the national models (the Italian and German
especially).76 The most important innovation was endowing the new European Court of
Justice with the power to hear preliminary references from national courts concerning
Boerger-De Smet, ‘Negotiating the Foundations of European Law’, p. 349.
Hjalte Rasmussen, ‘The Origins of a Legal Revolution’, p. 82.
70 Ibid, p. 87.
71 Boerger-De Smet, ‘Negotiating the Foundations of European Law’, p. 349.
72 Ibid.
73 Ditlev Tamm, ‘The History of the Court of Justice of the European Union since its Origin’, in
Allan Rosas, Egils Levits, and Yves Bot (eds), The Court of Justice and the Construction of Europe:
Analyses and Perspectives on Sixty Years of Case-Law (The Hague: TMC Asser Press, 2013), p. 16.
74 Alec Stone Sweet, ‘The European Court of Justice’, in Paul Craig and Grainne De Burca (eds),
The Evolution of EU Law (Oxford: Oxford University Press, 2011), p. 122.
75 Boerger-De Smet, ‘Negotiating the Foundations of European Law’, p. 351.
76 Ibid.
68
69
21
the validity of domestic law and, with that, the unprecedented ability to interpret
European law and issue preliminary rulings.77 This could in principle ensure uniform
understanding throughout the Community 78 and would eventually have major
implications for the activities of the court. The European Court of Justice was also given
powers to review the legality of acts by the Council and the Commission. Article 4, in
turn, strengthened the standing of the court by stating that it should be considered
equal to the other major institutions of the Community.79
All this set the new European Court of Justice quite apart from the ECSC-CJ. A new
sort of Community court had been created – one that would influence dispute
settlement institutions in many other RIOs in the coming decades.
North American Free Trade Agreement
We consider here the highly used dispute settlement mechanism 80 for foreign
investments laid out in Chapter 11 of NAFTA. Rather than a permanent court or other
institutionalized body, Chapter 11 specifies guidelines for hoc tribunals capable of
issuing binding decisions related to discrimination, uncompensated expropriation, and
treatment inconsistent with international law by member states vis-à-vis foreign
investors. In terms of scripts, Chapter 11 owed little to any other RIO and was
‘revolutionary’ or at the very least quite innovative in several respects.81 Yet, other RIOs
certainly influenced the earlier stages of the process. As with the European Court of
Justice, then, this case highlights how diffusion across RIOs can happen in the earlier
phases of institutional design but be far less relevant in the final step, even in cases
where the new RIOs supersede preexisting ones in the same spaces (and with the same
membership).
What, then, prompted the problematization of investor rights among the NAFTA
negotiators? Several factors played a role. Some were certainly endogenous to the
region. North America as a whole during the 1980s had become a major destination of
foreign direct investment, with flows among the three member states increasing in
Article 177; Martin Shapiro, ‘The European Court of Justice’, in Alberta M. Sbragia (ed.), EuroPolitics: Politics and Policymaking in the “New” European Community (Washington, DC: The
Brookings Institution, 1992), p. 126.
78 Tamm, ‘The History of the Court of Justice of the European Union since its Origin’, pp. 19-20.
79 The Commission, Assembly (later Parliament), and Council.
80 For
a list of cases, see http://www.international.gc.ca/trade-agreements-accordscommerciaux/topics-domaines/disp-diff/nafta.aspx (accessed on 5 September 2015).
81 Patrick Dumberry, ‘The NAFTA Investment Dispute Settlement Mechanism: A Review of the
Latest Case-Law’, The Journal of World Investment, 2:1 (2001), p. 151; Kristin L. Oelstrom, ‘A
Treaty for the Future: The Dispute Settlement Mechanisms of the NAFTA’, Law and Policy in
International Business, 25 (1993), p. 799.
77
22
every direction (except for Canadian investments into Mexico).82 The United States was
accordingly interested in more secure access to Mexico.
But exogenous factors also played a role. Some of these were not RIOs. The United
States was already a participant in numerous bilateral investment treaties,83 and these
as a rule had for a long time guaranteed various sorts of investor protections.84 During
the GATT Uruguay Round of 1986, in turn, the regulation of foreign investment disputes
was entertained for the first time. 85 Relevant were also frameworks from the
International Centre for the Settlement of Investment Disputes Convention and the
United Nations Commission on International Trade Law Arbitration Rules from the
1960s and 1970s, which appear in Chapter 11 as options for settlement procedures. All
these informed American interest in particular in this topic.
But RIOs also influenced the problematization of investor rights in NAFTA. In
general terms, NAFTA was the North American response to regional integration in
Europe and elsewhere, and the corresponding perceived need for a far-reaching trade
agreement supported by an enforceable regulatory framework. This applied to the
movement of capital as well, especially for the United States and Mexico. Cameron and
Tomlin describe for instance how Mexican President Carlos Salinas, upon returning
from a trip to Europe in 1990, realized that ‘Mexico could not count on its creditors for
economic aid [and that] it would have to seek capital from foreign investors’.86 Indeed,
‘the shift in the global economy toward gigantic regional economic blocks, such as the
creation of a common market in Europe, left Mexico with few choices. … Remaining
closed was not an option, and unilateral liberalization seemed to have few benefits’.87
The choice was therefore ‘negotiated liberalization’ in North America. Broadly speaking,
then, the European experience mattered. In more specific terms, the presence of two
RIOs with dispute settlement institutions – more importantly the Canada-United States
Free Trade Agreement (CUSFTA) with its investor protection clauses88 and, probably to
some extent, the 1987 ASEAN Agreement for the Promotion and Protection of
Alan M. Rugman and Michael Gestrin, ‘NAFTA’s Treatment of Foreign Investment’, in Alan M.
Rugman (ed.), Foreign Investment and NAFTA (Columbia, SC: University of South Carolina Press,
1994), pp. 48-50.
83 Ray Jones, ‘NAFTA Chapter 11 Investor-to-State Dispute Resolution: A Shield to Be Embraced
or a Sword to Be Feared?’, Brigham Young University Law Review, 22:2 (2002), pp. 527-59.
84 Barton Legum, ‘The Innovation of Investor-State Arbitration under NAFTA’, Harvard
International Law Journal, 43:2 (2002), pp. 531-39.
85 Norris C. Clement et al., North American Economic Integration: Theory and Practice
(Cheltenham, UK: Edward Elgar Publishing, 1999).
86 Maxwell A. Cameron and Brian W. Tomlin, The Making of NAFTA: How the Deal Was Done
(Ithaca and London: Cornell University Press, 2000), p. 1.
87 Ibid.
88 Oelstrom, ‘A Treaty for the Future’, pp. 799-802.
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23
Investments, with its binding arbitration tribunal – virtually ensured that the topic
would be an issue at least for debate in the NAFTA context.89
CUSFTA in particular influenced the framing phase. It offered one way of
categorizing the problem (the liberalization of capital movement cannot occur if
investors worry about the safety of their international investments) and offered a
possible solution (investor rights should be therefore protected thought not if it means
loss of national sovereignty). Hence ‘Canada wanted to keep Chapter 11 as close to
CUSFTA provisions as possible. Early bracketed texts were dominated by Canadian
exceptions and limiting clarifications’.90 CUFSTA had also granted governments the right
to review certain types of foreign investments – something also of importance to
Canada.91 With CUFSTA’s basic approach already shaping NAFTA’s dispute settlement
mechanism for anti-dumping and countervailing duty cases,92 its potential applicability
to investments was clear.
At the same time, the US was ‘interested in expanding even beyond the measures
included in its maximalist bilateral agreements, and insisted from the beginning on
starting from scratch, rather than building on CUSFTA. The United States was hoping to
avoid such a provision in NAFTA’.93 Hence, if only in a negative sense, CUFSTA helped
define the American position as well. The United States’ stance, we should note, was in a
positive sense more in line with the principles found in a number of recent bilateral
investment treaties, which themselves followed the principles of the International
Centre for Settlement of Investment Disputes Convention, the Additional Facility Rules
of the International Centre for Settlement of Investment Disputes Convention, and the
United Nations Commission on International Trade Law Arbitration Rules. In the case of
the United States and Canada, then, CUFSTA very much helped frame the issues and
solutions on hand.
When it came to scripts, however, NAFTA planners departed significantly from the
existing design of any RIO. As Olestrom put it, ‘the dispute settlement provisions for
investors form one section of the NAFTA that is not modeled on previous trade
agreements’. 94 The key characteristic of the dispute settlement mechanism on
investments was something unprecedented for an RIO: it allowed investors to sue
Jennifer A. Heindl, ‘Toward a History of NAFTA's Chapter Eleven’, Berkeley Journal of
International Law, 24:2 (2006), p. 680.
90 Ibid.
91 Heindl, ‘Toward a History of NAFTA's Chapter Eleven’, pp. 682-83.
92 Chapter 19; see Cherie O’Neil Taylor, ‘Dispute Resolution as a Catalyst for Economic
Integration and an Agent for Deepening Integration: NAFTA and MERCOSUR?’, Northwestern
Journal of International Law & Business, 17:1 (1997), p. 854.
93 Heindl, ‘Toward a History of NAFTA's Chapter Eleven’, pp. 680-81.
94 Oelstrom, ‘A Treaty for the Future’, p. 800.
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24
directly a country or sub-national jurisdiction. All past multinational trade agreements
required investors to ask their states to sue on their behalf.95 This was the outcome the
United States wanted given its fear of autocratic Mexican governmental actions over
foreign investments – one that predictably caused considerable uproar over time among
legal scholars and the public alike. In this regard, if there was diffusion, it was from
bilateral investment treaties, which typically allowed for investor-state disputes.96 A
second novel feature of NAFTA was the adoption of a ‘negative list’ of industries that
would be exempt from the stated protection obligations (whereas past practice in
CUSFTA and other RIOs required the listing of industries that were covered by those
obligations)97. A third and major innovation was the wide interpretation of investments
as including ‘minority interests, portfolio investment, and real estate property’.98
The final design of NAFTA’s dispute settlement mechanism in the investment area
was thus remarkably innovative and standard-setting (Mercosur’s 1994 Protocol of
Colonia, for instance, would subscribe to the investor-state dispute concept). But these
novelties do not mean that diffusion from other RIOs did not happen in the
problematization and framing phases. There, the experiences of the EU and CUSFTA
especially proved important.
Southern African Development Community
The Treaty of Windhoek transformed the Southern African Development Cooperation
Conference into today’s SADC with the goal of integrating the members’ economies into
an EU-type common market. Previously, it was a loosely structured organization built
upon financial and technical support by international donors aimed at withstanding
South Africa’s apartheid destabilization policies vis-à-vis its neighbours through
functional cooperation in selected policy areas. There was nothing ‘natural’ about the
creation of a dispute settlement mechanism in the transformed SADC.
How did dispute settlement become problematized? Discussions on transforming
the organization started in the region in the late 1980s. At this time, political debates
initially problematized a variety of issues associated with the functioning of sectoral
cooperation, and less so the institutional framework of the organization per se. For
example, a virulent issue in the late 1980s was the selection criteria and approval
procedure of projects that underwent changes due to the lack of coordination between
Legum, ‘The Innovation of Investor-State Arbitration under NAFTA’; Oelstrom, ‘A Treaty for the
Future’, pp. 783-812.
96 Jones, ‘NAFTA Chapter 11 Investor-to-State Dispute Resolution’, p. 530.
97 Gary Clyde Hufbauer and Jeffrey J. Schott, NAFTA Revisited: Achievements and Challenges
(Washington, DC: Institute for International Economics, 2005), p. 202.
98 Hufbauer and Schott, NAFTA Revisited, p. 214.
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25
regional and national political priorities.99 In none of these debates was dispute
settlement ever an issue, suggesting that there were no direct internal reasons for
problematization. In fact, an expert team that had been tasked to make
recommendations on a revised institutional structure for the organization in light of the
envisaged transformation in its mandate noted that SADC’s institutions ‘are adequate
and effective generally.’ It presented a list of institutions to be officially included in a
new Treaty, which did not contain a dispute settlement mechanism.100
Instead,
problematization
diffused
from
the
outside.
Even
though
the
aforementioned expert group did mention that ‘settlement of disputes shall be by
arbitration’101, dispute settlement only rose to the agenda as a problem that required
political action with the 1992 Consultative Conference, an annual meeting of SADC
officials and representatives from external donors, which is widely seen as ‘the most
important event in the SADC’s calendar of activities‘.102 The theme document, which is
used by donors to make financial pledges for the following period, engaged, for the first
time, justifications for different approaches to economic integration in the region.
Elaborated in cooperation with the most important donor agencies, including
representatives from the EU, it clearly stated that a regional development community
‘requires mechanisms of mediation and arbitration’.103 The next Council of Ministers
meeting then set the issue onto the political agenda.104 Nothing in the SADC context per
se can explain this problematization. Instead, the documents for the 1992 conference
suggest that problematization diffused from another RIO: the idea that economic
integration requires mechanisms for dispute settlement came from the European
experience, and was transferred by European experts who participated in the
formulation of the theme document.
In this case, problematization was closely linked to framing. The first expert group
initially framed the choice as one between an arbitration tribunal, which was a reform
proposal being discussed in the General Agreement on Tariffs and Trade (GATT) at the
time105, and a committee, which was the existing GATT mechanism.106 Yet after the
Ibbo Mandaza and Arne Tostensen, Southern Africa: In Search of a Common Future. From the
Conference to a Community (Gaborone: SADC Secretariat, 1994), pp. 38-39.
100 SADCC Council of Ministers, Record of the Council of Ministers Held in Arusha, Tanzania on the
22nd and 23rd of August (1991), p. 379.
101 Ibid.
102 James Sidaway, ‘The (Geo)politics of Regional Integration: The Example of the Southern
African Development Community’, Environment and Planning D, 16:5 (1998), p. 564.
103 SADCC, ‘Towards Economic Integration’, The Proceedings of the 1992 Annual Consultative
Conference Held in Maputo, Mozambique, 29-31 January (1992), pp. 41-42.
104 SADCC Council, August 1992, p. 35, emphasis added.
105 Manfred Elsig, and Jappe Eckardt, ‘The Creation of the Multilateral Trade Court: Design and
Experiential Learning’, World Trade Review, 14:S1 (2015), p. S25.
99
26
Secretariat had depicted the move towards economic integration as involving a choice
between ‘the proposed North American free trade zone or the European Economic
Community’107, policy-makers started considering a wider range of frames for dispute
settlement that also involved the more centralized form of arbitration of a standing
court. All of these frames shared two key characteristics. They diffused from other
international and regional organizations rather than constituting endogenous creations,
and they categorized the problem of arbitration as one of choosing the right institutions
with possible solutions requiring delegating competences to an independent body
instead of a politically dominated process. At their first meeting after the consultative
conference, the organization’s Council of Ministers adopted this frame when noting that
a regional Tribunal was to be among ‘the central intergovernmental organs of the
community’.108 It was eventually codified in the Windhoek Treaty (Art. 16), which
provided for the establishment of a permanent Tribunal with compulsory jurisdiction
and the power to ‘give advisory opinions’ over all matters of the treaty and subsidiary
instruments. In accounting for the fact that policy-makers eventually chose a more
institutionalized solution to the problem of arbitration, Lenz plausibly suggests that
this was due to the fact that political leaders were eager to retain credibility with
important international cooperation partners amidst rumours to withdraw funding
from the organization after the end of the Cold War, among which the EU was the most
important.109
The Tribunal’s specific institutional features – its scripts – were to be laid down in a
separate protocol, work on which started several years later. By that time, designing the
Tribunal based on the template of the new dispute settlement system of the World
Trade Organization, with which the Windhoek stipulations were fully compatible,
appeared like the ‘natural’ choice for a group of countries that were largely unwilling to
cede significant amounts of sovereignty. When signing the protocol in 2002, however,
policy-makers showed ‘a revealed preference to emulate the ECJ’ due to three key
institutional features of the Tribunal: a supranational Commission that monitors state
compliance, a preliminary rulings mechanism that is a literal copy of Article 177 of the
Treaty of Rome, and a system of administrative and constitutional review that provides
SADCC Council of Ministers, Record of the Council of Ministers Held in Arusha, Tanzania on the
22nd and 23rd of August (1991), p. 379.
107 SADC Council of Ministers, Record of the Council of Ministers, 28 August (1991), p. 361.
108 SADCC, ‘Towards Economic Integration’, p. 35.
109 Lenz, ‘Spurred Emulation’, pp. 165-66.
106
27
for private access. 110 As before, this choice was readily explicable by a mix of EU-
oriented epistemic communities that were involved in the Protocol’s drafting, as well as
an external context characterized by another legitimacy crisis with external donors, on
which the organization continued to be highly dependent.111 In sum, the SADC Tribunal
constitutes an instance of extensive diffusion, with all of the three decision-making steps
leading to the final outcomes influenced by external models, above all the EU’s.
Conclusion: Theoretical implications and conditions of diffusion
In this article, we have sought to refine our understanding of diffusion’s causal influence
on RIOs. Drawing on insights from public policy research and sociological work on
organizations, we offered a conceptual framework that allows scholars to extend their
focus beyond the final design (scripts, in our terminology) of policy and institutional
outcomes. We suggested that policies and institutional arrangements in RIOs result from
three distinct decision-making stages: problematization, framing, and scripting.
Diffusion across RIOs can affect any combination of these three stages. Convergence thus
need not be the only marker of diffusion: diffusion can happen also when we observe
persistent variation in final design. We illustrated this conceptual logic with a structured
comparison of the establishment of dispute settlement institutions in the EEC, NAFTA,
and SADC. In this section, we discuss three theoretical implications of our analysis and
propose two general conditions under which diffusion is likely to affect the three stages
of decision-making in RIOs.
As to theoretical implications, the findings suggest, first, a reconsideration of the
nature of diffusion as a causal force. Much of the literature, not only on RIOs but beyond,
depicts diffusion as a force for convergence in final designs.112 From this perspective,
diffusion accounts are generally seen as posing a theoretical challenge to functional
theories of institutional design and public policymaking. Our analysis indicates that this
view is overly narrow. Especially of diffusion triggers the recognition of a situation as a
problem that requires political action (problematization) and shapes the way in which
the problem is understood (framing), it provides a strong impetus for departing from
the status quo, independent of the resulting final outcome – thus, it constitutes a force
for change. If this argument is correct, diffusion accounts challenge a potentially much
Alter, ‘The Global Spread of European Style International Courts’, p. 145; see also Alter, The
New Terrain of International Law.
111 See Lenz, ‘Spurred Emulation’, pp. 166-67.
112 For a crique of this view in sociology, see Beckert, ‘Institutional Isomorphism Revisited’;
Elkins and Simmons, ‘On Waves, Clusters, and Diffusion’, p. 36.
110
28
larger class of theoretical approaches including, above all, certain variants of neo-
institutionalist theories that predict organizational stability. Historical institutionalism,
in particular, has identified powerful forces – sunk costs, adaptive expectations, learning
and coordination effects, and resistance by the beneficiaries of the status quo – that
reinforce the continuity of institutional arrangements.113 Similarly, a large sociological
literature contends that institutions rest on shared normative routines and
commitments that have a tendency to be chronically reproduced. This has led to a
widespread assumption, present also among International Relations scholars, that
international organizations ‘are notoriously resistant to reform or redirection’.114 Our
analysis suggests that diffusion dynamics might undermine the endogenous self-
reinforcement dynamics characteristic of path dependent processes. In this sense,
diffusion pressures act effectively as an external shock on the receiving organization –
and their role is thus consistent with the thinking of some neo-institutionalists who see
external shocks as the primary causes of disruption triggering organizational change.
The specific ways in which diffusion does so invites further research.
Second, our framework contributes to the debate among scholars on ‘whether or
not diffusion implies the adoption of some variant of the original model.’115 There is a
growing view, resisted by some, that even non-adoption might indicate diffusion to the
extent that a particular model is considered for adoption, even if it is ultimately
rejected.116 The claim has merit, and the two positions appear contending because they
in fact focus on different stages of decision-making: whereas the mainstream view –
non-adoption indicates non-diffusion – recognizes diffusion only in final designs, the
other position essentially acknowledges, as do we, that diffusion might operate at earlier
stages of decision-making. When a model is considered for adoption and ultimately
rejected as a template for final design, it might nevertheless subtly shape the way an
existing arrangement is problematized, or it might frame, in a generic fashion, the
problem and potential solutions. In this sense, even non-adoption of the institutional
template can indicate a causal role for diffusion. The NAFTA case offers an example.
A third theoretical implication concerns the interaction between diffusion
pressures and domestic politics in shaping outcomes. Diffusion studies are often set
against explanations emphasizing internal factors in general and domestic politics in
particular. The common conceptualization of diffusion as concerning final design is at
Kathleen Thelen, ‘Historical Institutionalism in Comparative Politics’, Annual Review of
Political Science, 2 (1999), pp. 369-404; Pierson, Politics in Time.
114 Barnett and Finnemore, Rules for the World, p. 2.
115 Solingen and Börzel, ‘Introduction’, p. 9.
116 For example Risse, ‘The Diffusion of Regionalism’, pp. 5-6.
113
29
the root of this disagreement. It has led scholars to treat the two sets of factors as
theoretical anti-theses: if a decision to adopt a particular policy or institution can be
explained as the result of diffusion it cannot be explained by domestic politics and vice
versa. Our framework offers an alternative perspective. By distinguishing discrete stages
in decision-making processes, we open up analytical space for both diffusion and
domestic politics to matter in a sequential fashion. We gave some illustrations of this
when introducing our conceptual framework; our three empirical illustrations, more
systematically, displayed different sequences of the key ‘dynamics of “imitation and
innovation” through which transnational models are instantiated in national settings.’117
We hence recognize conceptually, not just empirically, that diffusion and domestic
politics do not constitute anti-theses, and provide one coherent way for conceptualizing
their interaction.
This helps to shed new light on the localization debate. Localization scholars
recognize diffusion as a salient influence on local processes but highlight processes of
translation and adaptation of foreign norms, ideas, and models by local actors.
Convergence, these scholars contend, is hardly ever an outcome under such
circumstances, and local actors should enjoy analytical primacy.118 Our framework
suggests that these arguments tend to be based on the misguided dichotomy that an
outcome is affected primarily either by domestic politics or by diffusion. These scholars
actually recognize that, in our terminology, it need not be final designs but can also be
problems or frames that diffuse from abroad. While domestic politics might be the major
determinant of scripting, as these scholars contend, diffusion can nevertheless shape
problematization or framing – as was the case in the EEC and NAFTA. Thus, this
controversy appears overblown if we recognize conceptually that domestic politics and
diffusion can affect different stages in decision-making.
We end by reflecting on one final question: Under what conditions is diffusion likely
to influence RIO decision-making? The above empirical illustrations, as well as other
diffusion research, suggest two general conditions. First, we expect network ties to play
an important role. The closer such network ties, the more likely is diffusion going to be.
Two types of network ties are relevant here. One is overlap in membership. The higher
the membership overlap between two RIOs, the more likely will diffusion affect
Marc Schneiberg and Elisabeth Clemens, ‘The Typical Tools for the Job: Research Strategies in
Institutional Analysis’, Sociological Theory, 24:3 (2006), p. 200.
118 See fn. 3 and 11.
117
30
decision-making because relevant information flows are likely to occur.119 This is what
we saw in the EEC and NAFTA cases, where shared membership across two legally
distinct RIOs was a powerful facilitator of diffusion. These two cases also suggest that
such membership overlap is most likely to affect the framing stage, and maybe also
problematization. It appears to leave more room for innovation at the scripting stage.
Another relevant network tie, especially visible in the SADC case, is interaction with a
powerful organizational pioneer. The EU is generally seen as the most successful
example of regional integration, and it actively supports such processes in other
organizations.120 Close ties with the pioneer appear to increase the likelihood if diffusion
across stages of decision-making. Whether this influence lessens as we move from
problematization to scripting remains to be analyzed. The absence of such close ties, in
turn, might explain why NAFTA appeared less influenced by the EU model of dispute
settlement.
While network ties are relational and therefore tend to be actor-oriented, diffusion
is also facilitated by broader structural conditions. A second condition, then, is that the
total amount of RIOs in which problems, frames, or scripts have diffused affects the
likelihood of diffusion to other RIOs. In an analogy to Strang’s influential definition of
diffusion121, we might hypothesize that the prior adoption of a problem, frame, or script
in a population alters the probability of adoption of remaining non-adopters. Concerning
dispute settlement, we would thus expect that the more RIOs problematize the issue in
their organization, the higher the likelihood that other RIOs will follow suit. The same
hypotheses can be rendered for frames and scripts. Once a certain threshold level of
adopters is reached at each stage, a specific problem, frame, or script assumes a taken-
for-granted character, and is therefore likely to diffuse more rapidly.122 Over time, then,
variation in problematization, framing, and scripting within the population is likely to
diminish – a hypothesis well known from world polity theory.123 What our framework
adds to this idea is that this structuration process follows a sequential logic that evolves
from problematization through framing towards scripting. In other words, we are likely
Hyeran Jo and Hyun Namgung, ‘Dispute Settlement Mechanisms in Preferential Trade
Agreements: Democracy, Boilerplates, and the Multilateral Trade Regime’, Journal of Conflict
Resolution, 56:6 (2012), pp. 1041-68.
120 Lenz, ‘EU Normative Power and Regionalism’.
121 David Strang, ‘Adding Social Structure to Diffusion Models’, Sociological Methods and Research,
19:3 (1991), p. 325.
122 This is an important element of Finnemore and Sikkink’s norm cycle. See Martha Finnemore
and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’, International
Organization 52:4 (1998), pp. 887-917.
123 DiMaggio and Powell, ‘The Iron Cage Revisited’, p. 156.
119
31
to see structuration tendencies first in problematiztion, then in framing, and finally in
scripting.
This sequential macro-hypothesis appears to be consistent with the general
evolution of dispute settlement in RIOs and preferential trade agreements (PTAs) that is
the subject of much recent analysis. The relevant literature indicates that some form of
institutionalized dispute settlement in RIOs and PTAs is becoming increasingly common,
which implies, in turn, that RIOs and PTAs without any such mechanism have become
rare.124 This suggests that the issue of dispute settlement is problematized almost
‘automatically’ when such agreements are being negotiated. In other words, variation
across RIOs and PTAs appears to have decreased enormously in problematization. Yet
increasing similarity goes further. Beyond problematization, most RIOs and PTAs
nowadays feature dispute settlement mechanisms that involve independent third
parties as adjudicators, implying that dispute settlement is increasingly framed as a
problem that requires independent adjudication. Nevertheless, in terms of scripting
much variation appears to remain. It is at this stage of decision-making that diffusion is
potentially the least widespread, partly because no single uncontested model of how to
address dispute settlement design has emerged. Clearly articulating and rigorously
testing such hypotheses across stages of decision-making remains a fruitful area for
future research.
124
Karen Alter and Liesbet Hooghe, ‘Regional Dispute Settlement’, in Tanja Börzel and Thomas
Risse (eds), Oxford Handbook of Comparative Regionalism (Oxford: Oxford University Press,
forthcoming); Smith, ‘The Politics of Dispute Settlement Design’.
32